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Superior Court of Justice (STJ) Reverses São Paulo Court and Defines That Right to Dividends of Non-Partner Extends Beyond Separation, Lasting Until Payment of Sharing.
A decision by the 3rd Panel of the STJ (Superior Court of Justice) overturned an understanding of the São Paulo Court of Justice (TJ-SP) and determined that an ex-wife must pay her ex-husband, who is not a partner, the profits and dividends of her company distributed after the factual separation. The case, analyzed in REsp 2.223.719, creates an important precedent regarding the property rights of social quotas in marriages under partial community property.
The central controversy was to define the final milestone of the non-partner ex-spouse’s right to profits: the date of separation or the date of actual payment (settlement of accounts). Unlike the TJ-SP, the STJ concluded that the right persists as long as the “shared quotas” last, that is, until the value of the shared property is actually paid. This information was detailed by the Legal Consultant portal.
The Judicial Dispute: From Factual Separation to TJ-SP
The case involves a couple who lived under a partial community property regime until February 2018. During the marriage, the woman acquired 3,800 social quotas from a real estate asset company. With the divorce, the ex-husband began to have property rights over half of these quotas, even without ever being a formal partner of the company.
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The trial court, in a decision upheld by the São Paulo Court of Justice, had partially favored the ex-husband. However, the São Paulo courts set the date of factual separation (February 2018) as the time limit for receiving profits. In practice, the man would only receive the dividends generated until that moment, and not the profits distributed during the division process, which can take years.
The Turnaround at the STJ: The Concept of “Partner of the Partner”
Dissatisfied, the ex-husband appealed to the Superior Court of Justice, arguing that his right to profits should extend until the final payment of his shares. The 3rd Panel of the STJ accepted the argument unanimously, overturning the TJ-SP decision. The rapporteur of the case, Minister Nancy Andrighi, was the leading voice of the prevailing thesis.
As highlighted by the Legal Consultant when analyzing the ruling, Minister Andrighi explained the figure of the “partner of the partner”. When the marriage ends, the non-partner ex-spouse (in this case, the husband) acquires property rights over the quotas, but not management rights (to vote or manage the company). This property right does not instantly terminate with the separation.
The rapporteur grounded the decision in Article 1,027 of the Civil Code, which indicates that the receipt of payments must continue until the partnership is liquidated before the withdrawing partner (or, in this case, the ex-spouse). As long as the amount corresponding to his share has not been paid, he retains the right to the credit.
Why Do Profits Continue to Be Owed After Separation?
The logic of the STJ is that, after the factual separation, the ex-spouse partner continues to run the business and receive profits, utilizing an asset (the quotas) that partially belongs to the ex-husband. If he holds the property right, he should also participate in the fruits generated by this asset.
The higher court clarified that the final milestone is the “settlement of accounts” followed by the “actual payment”. The settlement of accounts, according to the Legal Consultant, is the accounting procedure that assesses the company’s actual assets to define how much the ex-spouse’s part is worth. This does not mean closing the company, but rather quantifying the compensation due.
“As long as the amounts are not effectively paid to the ex-spouse, his credit right remains against the partnership, which should also apply to the profits and dividends distributed to the ex-spouse partner, in proportion to his share,” concluded Minister Nancy Andrighi in her decision, cited by the Legal Consultant.
The decision of the STJ changes the calculation of the division of assets of companies. Do you agree with this interpretation? Do you think it’s fair that the non-partner ex-spouse continues to receive profits even after the factual separation, until the final payment? Leave your opinion in the comments; we want to hear from those who live this in practice.
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